271 Enforcing Mental Health Parity 2015
the federal government’s “muted response” to enforcement undermines the
industry’s imperative and ability to ensure providers properly comply with
Prior to November 2013, much of the criticism surrounding enforcement
of the MHPAEA involved the lack of federal guidance in the form of a final
rule.148 For firms and providers charged with restructuring their plans and
benefits to comply with the law, the lack of final guidance posed a significant challenge.149 At field hearings for the parity law in 2013, many wit-nesses complained that their health plans continued to impede access to equitable treatment, attributing this difficulty in part to the lack of a final
regulation.150 Former Congressman Jim Ramstad, one of the parity law’s
chief proponents, noted shortly after the law’s enactment: “It’s clear that
congressional intent is not being followed by the health plans, and that patients are being denied access to treatment. The regulators need to issue further regulatory guidance and enforce the regulations.”151
In response to these and other comments, the preamble to the final rule
noted there was confusion and concern about the Departments’ ability to
ensure compliance with the MHPAEA’s requirements.152 Our review of enforcement actions to date confirms, at a minimum, the Departments’ concession.
B. Enforcement Efforts to Date
There have been efforts to implement and enforce the parity law since
the MHPAEA’s inception in 2008, though most are the result of private enforcement. As of 2011, 160 parity complaints had been filed with the
DOL.153 Additionally, some state legislatures took steps to pass laws im-ute to [the lack of parity law enforcement], one of the most significant is states’ hesitance-or
even refusal-to do their share to enforce the federal parity law.”).
147. Weber, supra note 6, at 230.
148. See, e.g., REPORT OF THE 2012-2013 PARITY FIELD HEARINGS, PATRIOTS FOR
PARITY 10 (2013), available at http://parityispersonal.org/sites/default/files/hearing%20
report.pdf (quoting the testimony of a Maryland doctor who said: “ I am frustrated and even
embarrassed that such a powerful law-one that places the health of our brains on the same
level of importance as the health of our heart, our kidneys, our skin-still lacks the final regulations to add teeth to its requirements four years after being signed into law.”).
149. Barry et al., supra note 9, at 423.
150. PATRIO TS FOR PARITY, supra note 148, at 10.
151. Legal Action to Enforce Parity Contemplated, Ramstad tells ADAW, ALCOHOLISM
& DRUG ABUSE WKLY. 4, 4 (May 30, 2011).
152. Final Rules, 78 Fed. Reg. 68240, 68252 (Nov. 13, 2013) (to be codified at 45
C.F.R. pts. 146 & 147), available at http://www.gpo.gov/fdsys/pkg/FR-2013-11-
153. Weber, supra note 6, at 230. Ellen Weber obtained this data from phone interviews
with Carol McDaid, the co-chair of the Parity Implementation Coalition. See id. at n.225.